JURIST Guest Columnist Bryan H. Wildenthal of Thomas Jefferson School of Law in San Diego discusses the history of Supreme Court vacancies and presidential nominations during presidential election years…

Justice Antonin Scalia, one of the most provocative judges in American history, was known for his brilliantly argued views on the plain text and original meaning of our Constitution. So perhaps it is fitting that his death has triggered an epic political and historical argument over when to appoint his successor on the Supreme Court.

Scalia’s body had not even begun its final journey home from remote West Texas when leading Republicans threw caution and decency to the winds, declaring they would block consideration of any nominee to fill the vacancy until after President Obama leaves office. Obama has almost a full year left in the term to which the American people reelected him. But Republican senators and presidential candidates closed ranks behind a hastily proclaimed “precedent” allegedly developed over the last “80 years” not to confirm Supreme Court nominees during presidential election years. Suggestions have appeared in recent days that there might be some cracks in the Republican monolith, but it is still important to dissect this argument carefully.

It is, first of all, stunningly hypocritical. It is also factually wrong. But even if, as in the old song lyric, Republicans “don’t know much about history,” they usually claim, like the late Justice Scalia himself, to care about the “original” meaning of the Constitution, including historical practices going back to the nation’s founding said to provide guidance. It is thus strange and highly suspect that they suddenly narrow their focus to only the last 80 years of the 227 our Constitution has been in effect.

Where does this “80-year” talking point come from, anyway? Well, the last time the Senate confirmed a Supreme Court nominee during a presidential election year, to fill a vacancy occurring that same year, was 1932 (84 years ago). President Hoover (a Republican, by the way) got his nominee confirmed to fill a vacancy that happened in January, only slightly earlier in the year than Scalia’s death, before being defeated that November by his Democratic successor, President Roosevelt. That precedent, of course, inconveniently contradicts the current Republican argument, which is apparently why they drew the line at 80 years to avoid it. But their argument is bogus anyway, falsely implying that such vacancies have happened since 1932 but with the opposite outcome (wait for the next president). But no outcomes like that exist.

Suppose for a moment that no comparable Supreme Court vacancies at all happened between 1932 and Scalia’s death. All that would show is that such vacancies are not very frequent. It would not provide any logical reason to ignore what was done the last time it happened (in 1932). In any event, unhappily for Republicans, 1932 was not the last relevant occasion.

Even if we play along and blinker ourselves to look only at the last 80 years, the Republican argument falls apart. There has in fact been one election-year vacancy since then, in 1956. And the outcome was exactly opposite to what they now argue. The 1956 vacancy occurred very late in the year, October, and yet President Eisenhower (another Republican) immediately installed a new justice by recess appointment, right before the election. That justice was then confirmed in March 1957, thus removing this case on a technicality from the category of “election-year vacancy-plus-confirmation.” True, confirmation became much easier and more likely once Eisenhower was reelected, but the relevant point is that he didn’t wait to find out. He acted before the election and did not just leave the choice to whoever took office in January 1957.

It gets worse. Recall that the broader version of the Republican argument frantically blasted out the day Scalia died was no Supreme Court confirmations, period, during election years (in the last 80 years). Slight problem: In two more such years, 1940 and 1988, nominees by a Democratic President (Roosevelt) and a Republican President (Reagan) were confirmed, though it is true they filled vacancies that arose before the election year (but just barely in the first case, a death in mid-November 1939).

Then there is 1968, an example that might at first blush seem favorable to Republicans, since that was an election year in which Republican senators played a major role in blocking a Democratic president’s late effort to make a court appointment. But 1968, while a bit more complicated, also does not support the Republican talking points, and in fact further undermines them. Chief Justice Earl Warren waited until June that year to announce his intention to retire (four months later in the year than Justice Scalia’s death), while stating he would continue to serve until a successor was confirmed. President Johnson nonetheless went ahead and nominated a successor, defying the “precedent” now claimed. Conservative senators in both parties ultimately blocked Johnson’s flawed nominee (he withdrew), but they held hearings and gave him ample consideration. There was much less time to act, and no urgency since no actual vacancy existed.

By contrast, blocking any consideration this year of any replacement for Scalia would guarantee a vacancy on the court lasting at least a full year, and more likely 16 months (around 500 days) until after the next court term ends in June 2017. That would seriously hamper its work and create numerous 4-4 splits. There has been no gap of that length in the court’s full strength since the Civil War era.

Let us pause to be very clear: During the relevant time frame claimed by Republicans we have actual bipartisan precedent contradicting their bogus “precedent.” Republicans say President Obama should not even nominate Scalia’s replacement, but in four of the last twenty presidential election years, Supreme Court vacancies existed, occurred, or were announced, and in all four cases the incumbent presidents (two Republicans and two Democrats) went ahead and made a nomination (or even more pushy, a recess appointment), and in three out of four cases, the Senate confirmed the incumbent’s choice.

Now let us honor Justice Scalia by doing what he often did in his greatest opinions, and follow the history back to the founding era. The details are a bit complicated. (History buffs may consult a paper posted by the author of this essay containing supporting data and explanations.) But the big picture is clear: Not only is there nothing resembling the precedent Republicans claim, a strong contrary tradition dates back to the founding era. Here are the highlights:

In every single election-year vacancy in American history, the incumbent president did not follow the course Republicans now demand of President Obama. Instead, all those presidents, including some very unpopular “lame ducks,” nominated and made vigorous efforts to confirm the replacement justices of their choosing. And in a heavy majority of cases, those presidents got their way and the justices they nominated were confirmed and seated on the court. Three of those were Chief Justices of the United States, including Chief Justice John Marshall, by common consent the greatest in American history, who served 34 years (1801-35).

In the eight most relevant cases of election-year vacancies occurring by June (thus allowing reasonable time), the Senate gave full consideration and up-or-down votes to the nominees seven out of eight times and approved them six out of eight times, a 75 percent success rate. In the one case, in April 1844, when the vacancy did not result in a Senate vote, there was actually another pending vacancy from December 1843, for which the lame-duck incumbent did receive Senate votes and which he eventually succeeded in filling less than a month before his term expired. So incumbent presidents actually received full Senate consideration in 100 percent of the most relevant election years.

In nine cases, including the other 1844 case, nominees were confirmed during election years (or even later before the end of that presidential term) to fill vacancies that occurred the previous year (in five out of nine cases, in October or later right before the election year began). Incumbent presidents enjoyed a 100 percent success rate with those nine nominations.

We thus have a grand total of 17 relevant vacancies, from 1796 to 1988, which either occurred during the first half of an election year, or which occurred the year before but were not resolved until after the election year began. The Senate gave the nominees full consideration and up-or-down votes in 16 cases (in 100 percent of the 12 election years involved, five of which involved double vacancies), and approved the nominees 15 times out of 17, an 88 percent success rate.

Those Republicans who claim, with special ostentatiousness, that they honor the original understanding based on practices close to the time of the Constitution’s adoption, should pay special heed to this fact: Two election-year vacancies, plus two additional vacancies filled by election-year confirmations, occurred within fifteen years of the Constitution taking effect in 1789. All four received full Senate consideration and approval.

When President George W. Bush was in the White House, Republicans argued that every presidential nominee was entitled to a fair up-or-down vote, and that any Senate filibuster or other refusal to grant such a vote violated the spirit and perhaps the letter of the Constitution they claim to revere. Some Democrats, including then-Senators Obama and Hillary Clinton, sought to filibuster the confirmation of Justice Alito in 2006. But no Senate Democrat ever suggested the Senate not hold hearings or consider his nomination, and a substantial number of Democrats joined the 72-25 vote to end the filibuster, ensuring Alito’s confirmation and a major shift to the right in the ideological balance on the court. Senate Democrats later came to agree with Republicans on the filibuster, and limited its use.

Now the shoe is on the other foot and Republicans, quite simply, want to change the rules. No one disputes that senators, after fairly considering any nominee, have the right and power under the Constitution to withhold their “consent.” And everyone knows the current Senate has a Republican majority with the votes to do just that, though they would have to account to the American people for how fair and justified such a rejection might be.

But for senators to declare in advance that they will not even consider any nominee President Obama may propose, to keep a seat open for more than a year in the hope that a Republican president may fill it, is a truly shocking and extremist step. It would be a bizarre obstruction, unparalleled in American history. It would be an astonishingly uncalled-for insult to a duly elected President of the United States. It would surely invite Democratic retribution if a Republican president sought to fill the same vacancy later.

If Senate Republicans choose to ignore the facts, defy history and abuse their power in this way, they will dishonor both Justice Scalia and the Constitution he revered and spent his life defending. They should think again.

Bryan H. Wildenthal is a professor at Thomas Jefferson School of Law in San Diego, where the late Justice Scalia spoke on several occasions and was scheduled to teach this June in the school’s international and comparative law program in Nice, France.

Suggested Citation: Bryan H. Wildenthal, Republicans Play Hypocritical Politics With the Supreme Court, JURIST – Academic Commentary, February 21, 2016, http://jurist.org/forum/2016/02/bryan-wildenthal-republicans-court.php.